Artist, Fan Clash Over What Constitutes Online Piracy
Park Slope artist Alex Grey is known for his love of LSD and the vivid, elaborate body of work that has often been inspired by it. His paintings have graced album covers for Nirvana, Tool, and String Cheese Incident—not to mention rave flyers and sheets of blotter acid.
Juan Pablo Fernandez, who lives in Sunset Park, describes Grey's work as "the best art that has come out in the last couple hundred years. Not only is it beautiful, but it has depth and meaning to it."
Sweet words, but the two soft-spoken men have squared off in a lawsuit that raises questions about art piracy and permissible sales practices on the Internet.
Fernandez has been selling—or, rather, reselling—Grey's work online. Last month, the artist filed a copyright-infringement suit against him. Grey doesn't dispute his fan's right to resell the prints, which Fernandez bought at retail price straight from Grey's gallery before framing them, marking them up, and advertising them online. Rather, he is suing Fernandez for posting online photos of the art. Says Grey: "I worked all my life to create the art, and it's very easy to reproduce it now—these grand pictures online." He equates the online images to clip art, which is anonymous and easily available to right-click and copy.
Whether online photos of artwork constitute illegal reproductions is a murky legal question, but one that is hugely important to sellers on eBay, CraigsList, Amazon, and other venues where people often resell their possessions. While publishing a photo of a copyrighted work for the purpose of reselling it certainly can be legitimate, it's a question of interpretation, says Paul Fakler, vice chair of the New York State Bar's intellectual-property section: "The courts have a lot of latitude on deciding what is fair."
This particular battle also hinges on the generation gap between the 54-year-old artist and his 30-year-old fan. While Grey's days consist of New Moon meditations and techno tribal dances, Fernandez's world revolves around his Mac.
Grey, who refers to himself as a mystic, is a product of the '70s psychedelic-art scene and still seems rooted in that era. His art, which centers on the human body and spirit, has been inspired by both his experience preparing cadavers for Harvard anatomy classes long ago and the visions induced by psychedelic drugs. (In March, he attended the World Psychedelic Forum in Switzerland, though he says he's abstaining from drugs these days.) Lately, he and his wife, artist Allyson Grey, are focused on their Chapel of Sacred Mirrors in Chelsea, a nonprofit gallery space that hosts a wealth of New Age–y events. They are currently raising money to move the gallery after their current lease ends later this year.
Fernandez, born in Bolivia and raised in New York City, makes his living by helping others set up eBay stores for their goods, and by framing and selling posters online. His main project is MysticMana.com, which features 44 different Alex Grey prints ranging in price from $28.85 to $299. Many other artists' works are featured on the site, including those of H.R. Giger, M.C. Escher, and José Clemente Orozco, but he says Grey is his top seller.
The two men met in person last summer after Grey discovered his work being sold on MysticMana.com. Fernandez recalls: "He told me, 'It's OK if you sell it on the street,' " but he didn't want the images online. "That was kind of an insult," says Fernandez. Tearing himself away from his laptop, he adds: "What's going to become of the Internet if you can't post photos of what you are reselling?"
Fernandez says he offered a few possible solutions, such as watermarking the online images, but no agreement was reached. Meanwhile, Grey complained to eBay, where Fernandez was also selling the framed prints, and the company quickly took down the disputed listings. (eBay typically removes listings of disputed goods if the complaint comes from the owner of the copyright or trademark in question.)
"On the one hand," says Grey, "if [Fernandez] is doing this because he has some connection—hopefully it's some kind of meaningful connection and love of the artwork—gosh, I'm heartened with that. It's just that every penny we can make, we try to put into the long-term goal of building the new chapel. That's why I guess we felt we had to file the suit."
Fernandez says he'll file a response to the civil complaint this month, arguing that the online images are a protected fair use of copyrighted material.
With so much open to interpretation, Fackler wouldn't hazard a guess on the outcome. In such a suit, he says, considerations include the size of the published photograph and the purpose of posting it online. And, he adds, "you have to factor in what the judges had for breakfast that day—and whether they're in a good mood."
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